III COTTON AS CONTRABAND OF WAR
Reading edition
[September 1915]
Cotton proclaimed Contraband of War—Public Demand for the Proclamation—The answer to the Critics of the Government—‘Continuous voyages’ and the Order in Council—Possible combination of Contraband and Blockade—American reply to Austrian Note.
Raw cotton has been proclaimed contraband of war.[48] I may therefore fill in a blank space in what I have written in the previous articles on the law of contraband of war and the law of blockade. It was obviously impossible while the matter was, as it were, sub judice, to point the moral of the doctrine advanced in those articles—which I believe to be most sound doctrine—that ‘the right to blockade the enemy is in principle no more than the right indefinitely to extend the list of contraband of war against the neutral trader,’[49] by a reference to the ‘cotton question.’ But I am free to do so now.
Public Demand for Cotton to be made Contraband of War
I must confess that the movement, of which the Proclamation is the outcome, in its later stages has filled me with amazement; more especially the way in which, the object attained, the announcement of its issue has been received. A sigh of relief has gone up: ‘At last!’ it is said, ‘the Government has given way, and the step has been taken which should have been taken at the beginning of the War.’ There is a gratified assumption that those who have fought the good fight have triumphed over a stubborn lot of procrastinating and incompetent Ministers. Some even suggested, when the decision was announced, that a wicked Government might, after all, only make cotton conditional contraband, for was it not a Government prone to subterfuge?
The leaders in the fight, the distinguished chemists, are so eminent that I refrain from applying to them the term ‘agitators’; they are so eminent that I am sure they will bear with me patiently while I explain why, even though they appear to have accomplished it, they were trying to shut a door that was already closed, for ‘sweet reasonableness’ is an attribute of all eminence. It is not necessary now to inquire what were the reasons which induced the Government to refrain from putting cotton on the list of absolute contraband during the first six months of the War; it was a policy deliberately adopted by responsible Ministers; whether it was the right or the wrong policy is not the question which the leaders of the movement have put in issue. The errors of the past were at length to be retrieved.
By the Order in Council of the 11th of March, a new policy was adopted which, in the opinion of the present Government, should have been effective to achieve what all desire—the prevention, by all possible legitimate means of warfare, of cotton, as well as everything else, from reaching Germany. This was intimated in Lord Moulton’s answer of the 19th March to the distinguished chemists who had moved in the matter;[50] and it was more fully explained by Lord Robert Cecil in the House of Commons in August. It is that policy which has been so vehemently attacked as insufficient, as part of our ‘sorry record in the cotton question.’ It was contended that in spite of the far-reaching effect of the Order in Council it was necessary further to reinforce the powers taken under it by putting cotton on the list of contraband of war; and the Government have now done what they were asked to do.
The criticism of the Government took two forms, one of which was serious. The other may be dealt with summarily. It was to the effect that the Order in Council ought to be revoked because, so it was said, many lawyers considered it to be contrary to international law, and that it should be replaced by some provision dealing specially with cotton. I have endeavoured in the preceding articles to show that this opinion of my learned brothers, if indeed they hold it, is erroneous. But, putting this on one side, I believe the sound and only rule of speech and of the pen for Englishmen while the War lasts to be omnia præsumuntur rite esse acta. Criticism, based on learning or otherwise, of action taken by the Government against the enemy is out of place in time of war. The fact that such action affects neutral merchants injuriously does not justify criticism, for whatever weight it may have, by so much it adds to the difficulties, already immense, of temperate discussion with neutral Governments; by so much it heartens the enemy who seeks per nefas to render the discussion intemperate. For the present, therefore, at least a judicious silence is the better and the wiser part.
But criticism of inaction of the Government in regard to the enemy stands on a different footing, and, so only that it conform to one condition, it is permissible. That condition is the not unimportant one—full knowledge of all the facts. The eminent chemists and others who have been so vehemently urging the Government to make cotton contraband of war were critics of alleged inaction, and so far their position was unimpeachable; but, I venture with respect to ask them, did they know all the facts? They certainly knew one fact—that, at the time they approached the Government, Germany was getting too much cotton; and realising the intimate connexion between this and the ever-growing lists of casualties they were deeply stirred, as all of us who are condemned to sit at home at ease were deeply stirred when we came to understand. But emotion is apt to cloud clear mental vision, and we have been asked by some persons to believe that those others, men like ourselves, who form the Government of the nation, having eyes yet see not the plain things that are going on before them. And yet those are the only men among us who know all the facts. The critical point, however, is not whether Germany has been getting too much cotton, but whether she has been getting it because the Government had not taken sufficiently strenuous measures to prevent it. This being assumed in the affirmative, these eminent critics further assumed that declaring cotton to be contraband would be more effective in preventing it from getting to Germany than the procedure authorised by the Order in Council.
The Answer to the Critics of the Government
None of us know what is actually happening on the high seas in the area controlled by our cruiser squadrons, though the statistics just published by the Foreign Office somewhat lift the veil. We cannot, therefore, do more than consider the abstract question of principle, whether it was necessary to supplement the Order in Council by a proclamation of contraband so as more effectually to prevent cotton getting through to Germany; and it seems to me essential to a right understanding of the discussion that we should consider it.
Now there is one fact which I should have thought would at once have disposed of the whole contention of the critics—the Protest of the United States Government. That Protest declares that in the Order in Council we have gone to lengths in interfering with American trade (which includes trade in cotton) hitherto unknown to international law, more especially in stopping that trade, asserted to be ‘innocent’ but manifestly the opposite, on its way to neutral countries. In all friendliness that Government exhorts us, among other things, to revert to the time-honoured practice of relying on declarations of contraband. It appears, therefore, that the United States Government charges us with doing precisely what our own critics condemn Ministers for not doing, except by ‘a half-hearted expedient’—stopping ‘innocent’ cargoes of cotton. That Government insists that the correct way of preventing cotton reaching the enemy is to shut ourselves up in those old watertight compartments of international law labelled ‘contraband’ and ‘blockade.’ They want to entangle us in that incomprehensible ravel of illogic into which those doctrines of international law have got themselves. Paraphrased, what the American Government says is this—declare a blockade, even though it be a ‘long-distance blockade,’ which they are willing to concede to be our right, and then we may stop all cotton going direct to German ports, though not, as the text-books point out, cotton going indirectly to Germany through neutral ports; or, declare cotton to be contraband, and then we may stop it even though it passes through neutral ports. But as we had done neither of these things in express terms, Germany must be allowed to get her ‘innocent’ shipments of cotton by way of neutral and contiguous ports. Verily, the American fowler spreads the net in the sight of the British bird.
Here is the substance of the whole discussion. The Judges of the United States, with clear-cut thought, declared, half a century ago, that the doctrine of ‘continuous voyages’ was the inevitable complement to the belligerent right of stopping munitions of war and their component substances on the high seas on the way to the enemy. In other words, that the doctrine completed the law of contraband of war. The British Government, has, by the Order in Council, declared that doctrine equally to be the inevitable complement to the more extended belligerent right of stopping all supplies from reaching the enemy. In other words, that the doctrine completes the law of what we have called the ‘new blockade.’
This, then, is the clear issue raised by the Order in Council for the judgment of any tribunal, national or international, to which it may hereafter be submitted, and of the world to which it is now submitted. And the position is, in my humble judgment, and in spite of the critics on our own side, unassailable. Nations, no more than individuals, are not to be bound by mere phraseology, especially in such a subject as this, without knowing what the terms used mean. ‘Blockade’ is a mere term, explaining what belligerent nations do, but not why they do it nor why neutral nations silently acquiesce.[51] It tells nothing of the right to do it. On the contrary it seems, for a hundred years, to have successfully blinded men by its technical conditions to the fact that the so-called right to declare a blockade is no more than a declaration of an intention by a belligerent to stop all supplies from going to the enemy, and stopping them. Is it not abundantly clear that that intention cannot be nullified by the cleverness of the neutral merchant in ‘darkening and disguising’ the fact that they are going to the enemy? That, then, we have declared by the Order in Council to be our intention, and we have acted on it. It may be that, in regard to cotton, we have exercised it imperfectly; some neutral merchants may have successfully evaded the vigilance of our ships. Human agencies are never quite perfect; of all, even though they be official, Rostand’s philosophy is, alas! too true:
Sache donc cette triste et rassurante chose, Que nul, Coq du matin ou Rossignol du soir, N’a tout-à-fait le chant qu’il rêverait d’avoir.
But because the ingenuity of the neutral merchant and his confederates has, as it is said, so far greatly baffled the vigilance of the mightiest fleet that ever stood guard upon the sea, the critics of the Government protest that we should fall back on the lesser remedy of declaring cotton contraband, and revoke, abandon, or ignore the more strenuous remedy provided by the Order in Council. It is difficult to appreciate the position these critics take up; it can only be explained by a lack of understanding of the real meaning of the Order. This these articles have endeavoured to do.
But, curiously enough, there is just one point where the combined operation of the laws of contraband and of blockade may increase our power of seizing cotton. It follows from what I have said in the second article with reference to the importance of reducing both laws to a common denomination of language,[52] that the reinforcement of even our ‘long-distance blockade’ by the addition of cotton to the list of absolute contraband will enable us to seize cargoes of cotton by isolated cruisers before the neutral ships which carry them reach the area in which the cordon of cruisers is operating. If this is a valuable power, as to which I am sceptical, it is right that it should be claimed and exercised; and it is one of the powers which result from the new Proclamation. I feel sure that the critics of the Government had not this addition to our powers solely in their minds; they certainly did not so formulate their criticism.
But the action which the critics wanted the Government to take has been taken; and I think the reason may not be far to seek. The American merchant, like his Government, believes that there is much virtue in technical terms. He says ‘put cotton on the list of absolute contraband; I know what that means; then I shall know where I am.’ I pointed out in the first article that the problem of the neutral trader is a very complex one, ‘for each belligerent as a buyer must strive to keep him in a good humour, but as a fighter must do all he can to thwart him.’[53] The cotton-grower of the Southern States prefers to be thwarted in this manner, and the British Government has humoured him. He prefers the risk of confiscation to the possibility of having his cargo returned to him if he is ‘the lawful owner thereof.’ So all is well.
The comments which have appeared since the Proclamation was issued have laid much stress on the deterrent effect it is bound to have on the cotton shippers, because the Order in Council does not provide for confiscation of cargoes of non-contraband, whereas now that cotton is contraband it must be confiscated. Also the complaint has been revived that the Order in Council was loosely enforced, and it is imagined that the declaration of contraband will of itself ensure a stricter supervision of cargoes of cotton at sea. It is difficult to follow either arguments, even on the supposition that this latter criticism is justified. For the machine by which both the Order in Council and the contraband Proclamation must be carried out is the same—the Fleet. The effectiveness of this machine, the efficiency of the Fleet, is obviously the dominating factor of the situation, whether it be governed by the Order or by the Proclamation. The deterrent nature of the fact that confiscation is now inevitable may possibly reduce the number of cargoes of cotton with which the Fleet may have to deal, but the other fact remains, that the Fleet will deal with them whatever may be their number.
There has also been, even in very responsible quarters, some rather confused talk to the effect that the result of the contraband Proclamation is to ‘improve our international legal position.’ If this means anything it implies acquiescence in the American argument that the Order in Council is not warranted by international law. Such an argument, as I have already said, is more than inopportune at the present time; those who use it would, I presume, be pleased to see the Order in Council revoked altogether. I trust, on the other hand, that nothing that I have said will be construed to suggest that the Government in yielding to the clamour of the critics has issued a futile Proclamation. Yet it is impossible to imagine that Ministers have lost faith in the virtue and efficacy of the Order in Council. The latest statement in Parliament, by Lord Robert Cecil, which I have already referred to, shows that they have not. The Proclamation does, as I have shown, strengthen the position in some slight measure; but there is a well-known form of legislation often resorted to ‘for the quieting of doubts,’ which does not give away the situation. Such I believe this Proclamation to be.
But for the sake of the science of international law, in the preservation of which both the British and the American Governments are profoundly interested: for the sake of that cardinal principle that as weapons of war increase in their power of destruction so must the belligerent might and right also increase, and new means must be found for keeping the new manifestations of sea-power within the old principles: for the sake of our duty of loyal belief that the Order in Council has devised those means in most legitimate fashion, let not the critics of the Government, learned or unlearned though they be, lay the flattering unction to their souls that they have won a famous victory.
P.S.—I take this opportunity of referring to the American reply to the Austrian Note which complained that the sale of munitions of war by United States merchants to the Allies was a breach of neutrality on the part of the United States Government. The Note was in the forcible-feeble style. It gave me the impression of having been written to order of the German Government by men who had not much belief in the soundness of their argument. It very clearly showed that necessity ‘knows no law,’ for erroneous doctrine was assuredly never so weakly stated. But it gave President Wilson an occasion of finally disposing of the false, and of asserting the true, principles of neutrality. It disposes also of the notion prevalent in some quarters, to which I referred in the second article, that the President’s ‘sense of fairness’[54] had something to do with our continuing to receive munitions of war from the United States. The reply has not been much noticed, but it deserves transcription as a most masterly statement of law and policy: ‘The principles of international law, the practice of nations, the national safety of the United States and other nations without great military and naval establishments, the prevention of increased armies and navies, the adoption of peaceful methods for the adjustment of international differences, and, finally, neutrality itself, are opposed to the prohibition by a neutral nation of the exportation of arms and ammunition or other munitions of war to belligerent Powers during the progress of the War.’
I draw special attention to the sentence ‘the national safety of the United States and other nations without great military and naval establishments’; these are the nations, small in their powers of defence, who, as I have pointed out, must go to the wall if the wild dream of neutralizing the sea should ever be allowed to materialise.[55]
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